Microsoft Corporation v. Ronald Alepin Morrison & Foerster et al

Filing 63

RESPONSE to Microsoft Corporation's Motion to Expand the Record by Ronald Alepin Morrison & Foerster, Clifford Chance LLP and Daniel Harris, Oracle Corporation. (Yates, Christopher) (Filed on 4/17/2006)

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Microsoft Corporation v. Ronald Alepin Morrison & Foerster et al Doc. 63 Case 5:06-mc-80038-JF Document 63 Filed 04/17/2006 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTO R N E Y S AT LAW SA N F R A N C I S C O LATHAM & WATKINS LLP Daniel M. Wall (Bar No. 102580) Christopher S. Yates (Bar No. 161273) 505 Montgomery Street, Suite 2000 San Francisco, California 94111-2562 Telephone: (415) 391-0600 Facsimile: (415) 395-8095 Email ID: Dan.Wall@lw.com Chris.Yates@lw.com Attorneys for ORACLE CORPORATION, CLIFFORD CHANCE LLP, DANIEL HARRIS and RONALD ALEPIN UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION In re Application of MICROSOFT CORPORATION, Applicant. CASE NO. 06-80038 JF (PVT) ORACLE CORPORATION'S RESPONSE TO MICROSOFT CORPORATION'S MOTION TO EXPAND THE RECORD Date: Time: Place: Before: To be set To be set To be set Hon. Jeremy Fogel ORACLE'S RESPONSE TO MICROSOFT'S MOTIONTO EXPAND THE RECORD CASE NUMBER: 06-80038 JF (PVT) Dockets.Justia.com Case 5:06-mc-80038-JF Document 63 Filed 04/17/2006 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTO R N E Y S AT LAW SA N F R A N C I S C O Microsoft Corporation has filed a motion for de novo review of an Order quashing subpoenas directed to Oracle Corporation, its legal counsel, and its technical advisor (collectively "Oracle") and to expand the record. Oracle does not oppose Microsoft's motion to expand the record. However, Oracle respectfully submits that the record should be further expanded to include: (1) a recent filing by the European Commission in the related proceedings in the District of Massachusetts; (2) a recent supplemental submission submitted by Microsoft in the District of Massachusetts; and (3) a Memorandum and Order issued today granting Novell, Inc.'s motion to quash. On April 6, 2006, the European Commission filed: Memorandum of the Commission of the European Communities In Support of Novell, Inc.'s Motion To Quash. See Exhibit B to the Supplemental Declaration of Christopher S. Yates. That filing was in response to a request made by Judge Wolf of the District of Massachusetts at the hearing on Novell's Motion to Quash. On April 12, 2006, Microsoft Corporation filed a Reply to Response of Novell, Inc. See Exhibit C to the Supplemental Declaration of Christopher S. Yates. On April 17, 2006, Judge Wolf issued a Memorandum and Order granting Novell's motion to quash. See Exhibit A to the Supplemental Declaration of Christopher S. Yates Oracle respectfully moves to expand the record to include the European Commission's filing in support of Novell's motion to quash, Microsoft's supplemental submission, and Judge Wolf's Order. The European Commission's filing and Microsoft's supplemental submission were made after the hearing before Magistrate Judge Trumbull and Judge Wolf's Order was issued just today. All are pertinent given Microsoft's heavy reliance on Judge Wolf's tentative order in its objections to Magistrate Judge Trumbull's Order. Indeed, the primary bases for Microsoft's objections to Magistrate Judge Trumbull's Order were Judge Wolf's tentative order and an assertion that Magistrate Judge Trumbull had committed an error because she had failed to consider that the Commission supposedly does not have the power to obtain the discovery Microsoft seeks. Microsoft has now admitted in its supplemental submission in the District of Massachusetts that its assertion about the Commission's power was wrong and Judge Wolf has 1 ORACLE'S RESPONSE TO MICROSOFT'S MOTION TO EXPAND THE RECORD CASE NUMBER: 06-80038 JF (PVT) Case 5:06-mc-80038-JF Document 63 Filed 04/17/2006 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTO R N E Y S AT LAW SA N F R A N C I S C O now granted Novell's motion to quash, noting: "The information submitted since the March 28, 2006 hearing demonstrates that Microsoft erroneously, repeatedly represented that the Commission of the European Communities (the `Commission') could not obtain and, if it wished, make available to Microsoft the documents Microsoft seeks by its 1782(a) subpoena." Dated: April 17, 2006 Respectfully submitted, LATHAM & WATKINS LLP Daniel M. Wall Christopher S. Yates By /S/ Christopher S. Yates Attorneys for ORACLE CORPORATION, CLIFFORD CHANCE LLP, DANIEL HARRIS and RONALD ALEPIN SF\557213 2 NOTICE OF MOTION AND MEMO. ISO MOTION TO QUASH MICROSOFT'S SUBPOENAS CASE NUMBER: 06-80038 JF (PVT)

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